CORONAVIRUS

Faced With 20,000 dead, Care Homes Seek Shield From Lawsuits

May 3, 2020, 10:36 AM

Medical workers load a patient from Andover Subacute and Rehabilitation Center into an ambulance wh...

Medical workers load a patient from Andover Subacute and Rehabilitation Center into an ambulance while wearing masks and personal protective equipment (PPE) on April 16, 2020 in Andover, New Jersey. After an anonymous tip to police, 17 people were found dead at the long-term care facility, including two nurses, where at least 76 patients and 41 staff members have tested positive for COVID-19. (Photo by Eduardo Munoz Alvarez/Getty Images)

(Photo by Eduardo Munoz Alvarez/Getty Images)

NEW YORK (AP) — Faced with 20,000 coronavirus deaths and counting, the nation’s nursing homes are pushing back against a potential flood of lawsuits with a sweeping lobbying effort to get states to grant them emergency protection from claims of inadequate care.

At least 15 states have enacted laws or governors’ orders that explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the crisis. And in the case of New York, which leads the nation in deaths in such facilities, a lobbying group wrote the first draft of a measure that apparently makes it the only state with specific protection from both civil lawsuits and criminal prosecution.

Now the industry is forging ahead with a campaign to get other states on board with a simple argument: This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment and testing, shifting directives from authorities, and sicknesses that have decimated staffs.

“As our care providers make these difficult decisions, they need to know they will not be prosecuted or persecuted,” read a letter sent this month from several major hospital and nursing home groups to their next big goal, California, where Gov. Gavin Newsom has yet to make a decision. Other states in their sights include Florida, Pennsylvania and Missouri.

Watchdogs, patient advocates and lawyers argue that immunity orders are misguided. At a time when the crisis is laying bare such chronic industry problems as staffing shortages and poor infection control, they say legal liability is the last safety net to keep facilities accountable.

They also contend nursing homes are taking advantage of the crisis to protect their bottom lines. Almost 70% of the nation’s more than 15,000 nursing homes are run by for-profit companies, and hundreds have been bought and sold in recent years by private-equity firms.

“What you’re really looking at is an industry that always wanted immunity and now has the opportunity to ask for it under the cloak of saying, ‘Let’s protect our heroes,‘” said Mike Dark, an attorney for California Advocates for Nursing Home Reform.

“This has very little to do with the hard work being done by health care providers,” he said, “and everything to do with protecting the financial interests of these big operators.”

Nowhere have the industry’s efforts played out more starkly than in New York, which has a fifth of the nation’s known nursing home and long-term care deaths and has had at least seven facilities with outbreaks of 40 deaths or more, including one home in Manhattan that reported 98.

New York’s immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years.

While the law covering both hospital and nursing care workers doesn’t cover intentional misconduct, gross negligence and other such acts, it makes clear those exceptions don’t include “decisions resulting from a resource or staffing shortage.”

Cuomo’s administration said the measure was a necessary part of getting the state’s entire health care apparatus to work together to respond to the crisis.

“It was a decision made on the merits to help ensure we had every available resource to save lives,” said Rich Azzopardi, a senior advisor to Cuomo. “Suggesting any other motivation is simply grotesque.”

Nationally, the lobbying effort is being led by the American Health Care Association, which represents nearly all of the nation’s nursing homes and has spent $23 million on lobbying efforts in the past six years.

Other states that have emergency immunity measures are Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts; Michigan, Mississippi, New Jersey, Nevada, Rhode Island, Vermont and Wisconsin.

Their provisions vary but largely apply to injuries, deaths and care decisions, sometimes even to property damage. But there are limitations: Most make exceptions for gross negligence and willful misconduct, and they generally apply only during the emergency.

Toby Edelman of the Center for Medicare Advocacy is troubled that homes are getting legal protections while family members aren’t being allowed to visit and routine government inspections have been scaled back.

“Nobody is looking at what’s happening,” she said, adding that immunity declarations could make even gross or willful negligence suits harder since homes could argue any deficiencies were somehow tied to the pandemic.

“Everything can’t be blamed on COVID-19. Other things can happen that are terrible,” she said. “Just to say we’re in this pandemic so anything goes, that seems too far.”

Among the situations for which lawyers say nursing homes should be held to account: Homes that flouted federal guidelines to screen workers, cut off visitations and end group activities; those that failed to inform residents and relatives of an outbreak; those that disregarded test results; and homes like one in California, where at least a dozen employees did not show up for work for two straight days, prompting residents to be evacuated.

“Just because you have a pandemic doesn’t mean you give a pass on people exercising common sense,” said Dr. Roderick Edmond, an Atlanta lawyer representing families suing over COVID-19 deaths in an assisted-living facility.

“If you take the power of suing away from the families, then anything goes,” said Stella Kazantzas whose husband died in a Massachusetts nursing home with the same owners as the home hit by the nation’s first such outbreak near Seattle, which killed 43 people.

“They already knew in Washington how quickly this would spread,” she said. “They should have taken extreme measures, sensible measures. And they were not taken.”

While the federal government has yet to release numbers on how the coronavirus has ravaged the industry, The Associated Press has been keeping its own tally based on state health departments and media reports, finding 20,058 deaths in nursing homes and long-term care facilities nationwide.

All the new immunity laws notwithstanding, there is a potential wave of lawsuits coming. Illinois lawyer Steven Levin said he’s received dozens of calls from people considering suing homes over the outbreak. Florida lawyer Michael Brevda said his firm gets 10 to 20 calls a day. And a lawyer in Massachusetts said he’s gotten maybe 70 from families with relatives at homes struck by the virus.

“We’re getting inundated,” said David Hoey, whose practice near Boston has been suing homes for 25 years. “They’re grieving and they’re confused. … ‘My loved one just died from COVID. What can I do?’”

American Health Care Association CEO Mark Parkinson said the notion of lawyers gearing up for lawsuits in the “middle of a battle to save the elderly” is “pathetic” and doesn’t consider the hardships nursing home workers have endured.

“The second-guessing of people after a tragedy, if those people did the best that they could under the circumstances, is just wrong,” said Jim Cobb, the New Orleans attorney who successfully defended nursing home owners charged in the deaths of 35 residents who drowned in Hurricane Katrina.

“There’s a lot to be said for someone acting in good faith in the face of a natural disaster and state of emergency, and they should have criminal immunity.”

___

AP reporter Candice Choi and investigative news researcher Randy Herschaft contributed to this report.

KSL 5 TV Live

Coronavirus

FILE: Former Utah Jazz John Stockton reacts during a 76-70 Wichita State win over the Gonzaga Bulld...

Michael Houck

Former Utah Jazz star John Stockton sues Washington medical director about COVID misinformation policy

Former Utah Jazz superstar John Stockton has filed a federal lawsuit against Washington officials on First Amendment violations, arguing the state's policy of COVID-19 misinformation is unconstitutional.

16 days ago

Deer Creek Reservoir...

Alex Cabrero

State parks expecting another record visitation year, hiring more workers

It didn't matter how cold or snowy it was at Deer Creek State Park Friday afternoon. Nothing was going to stop Leonard Sawyer from taking his boat out to do a little fishing.

1 month ago

FILE —  Respiratory virus illness activity continues to increase across the US.
(Joe Burbank/Orl...

Emma Benson

‘Not viruses to mess around with’: Experts urge caution during ongoing ‘tripledemic’

Experts say though not as severe as last year, this winter we're seeing another "tripledemic" – rising cases of COVID-19, flu and RSV in Utah.

3 months ago

FILE - COVID-19 antigen home tests. (AP Photo/Patrick Sison, File)Credit: ASSOCIATED PRESS...

Emma Benson

‘The ICUs are full:’ Keep yourself and others healthy this holiday

It's time for holiday gatherings, but with more people around us comes a greater risk of getting sick.

3 months ago

Julianna Preece goes through the mountain of medical documents she's acquired for her health condit...

Lauren Steinbrecher

Herriman couple is suing CVS, says 5x Covid vaccine dose mistake caused health problems

A couple is suing a Utah CVS vaccination clinic, saying a nurse’s mistake led to the wife receiving five times the normal COVID-19 vaccine dose and caused serious health issues she’s still dealing with today.

4 months ago

FILE - COVID-19 antigen home tests. (AP Photo/Patrick Sison, File)Credit: ASSOCIATED PRESS...

Associated Press

More free COVID-19 tests from the government are available for home delivery through the mail

Americans can order more free COVID-19 tests online for home delivery.

4 months ago

Sponsored Articles

Women hold card for scanning key card to access Photocopier Security system concept...

Les Olson

Why Printer Security Should Be Top of Mind for Your Business

Connected printers have vulnerable endpoints that are an easy target for cyber thieves. Protect your business with these tips.

Modern chandelier hanging from a white slanted ceiling with windows in the backgruond...

Lighting Design

Light Up Your Home With These Top Lighting Trends for 2024

Check out the latest lighting design trends for 2024 and tips on how you can incorporate them into your home.

Technician woman fixing hardware of desktop computer. Close up....

PC Laptops

Tips for Hassle-Free Computer Repairs

Experiencing a glitch in your computer can be frustrating, but with these tips you can have your computer repaired without the stress.

Close up of finger on keyboard button with number 11 logo...

PC Laptops

7 Reasons Why You Should Upgrade Your Laptop to Windows 11

Explore the benefits of upgrading to Windows 11 for a smoother, more secure, and feature-packed computing experience.

Stylish room interior with beautiful Christmas tree and decorative fireplace...

Lighting Design

Create a Festive Home with Our Easy-to-Follow Holiday Prep Guide

Get ready for festive celebrations! Discover expert tips to prepare your home for the holidays, creating a warm and welcoming atmosphere for unforgettable moments.

Battery low message on mobile device screen. Internet and technology concept...

PC Laptops

9 Tips to Get More Power Out of Your Laptop Battery

Get more power out of your laptop battery and help it last longer by implementing some of these tips from our guide.

Faced With 20,000 dead, Care Homes Seek Shield From Lawsuits